NATIONAL AUTOMOBILE INS CO ET AL v. INDUSTRIAL ACCIDENT COMMISSION ET AL

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District Court of Appeal, Second District, Division 2, California.

NATIONAL AUTOMOBILE INS. CO. ET AL. v. INDUSTRIAL ACCIDENT COMMISSION ET AL.

Civ. 13888.

Decided: March 12, 1943

C. W. Bowers, of Los Angeles, for petitioners. Everett A. Corten and Dan Murphy, Jr., both of San Francisco, for respondents.

Petitioners seek to annul an award of respondent Industrial Accident Commission directing the payment of compensation benefits to the dependents of George Ivy, which order is predicated upon the finding that petitioner Miller Oil Products was an employer of Mr. Ivy at the time he received injuries which resulted in his death.

The evidence being viewed in the light most favorable to respondents, the essential facts are:

March 15, 1942, petitioner Miller Oil Products, hereinafter referred to as “Miller,” entered into an agreement with Pathfinder Petroleum Company, hereinafter referred to as “Pathfinder,” by the terms of which, said petitioner leased to Pathfinder a truck. This agreement contained among others the following provisions:

“Lessee, during the time Lessee shall use the leased equipment pursuant to the terms of this lease, shall have the sole and exclusive control and use of the said leased equipment to the same effect as if Lessee were the owner thereof. Lessee shall employ and pay the wages of the drivers of the said equipment. Lessee agrees to employ and to permit said equipment to be operated only by competent and careful drivers duly licensed as required by law, and that Lessee shall in connection with such employment of such drivers carry all necessary and required workmen's compensation insurance or other insurance and shall comply with all laws, rules and regulations relating to the employment of truck drivers.”

May 11, 1942, Pathfinder, pursuant to its agreement with Miller, asked said company to furnish Pathfinder a truck and to get some one to drive it. Mr. Paul O. Miller, one of the owners of Miller, interviewed George Ivy, an applicant for the position. Mr. Miller testified that, “I told him at the time that before we would keep him on permanent on the truck we would send one of our drivers along with him for a trip.”

Thereafter Mr. Ivy went on a trip with one of the Miller drivers who reported that Mr. Ivy was a competent truck driver, whereupon Mr. Ivy was sent with the truck to work for Pathfinder. Thereafter on May 13, 1942, while in the employ of Pathfinder, who paid his entire salary and had the exclusive control and direction of Mr. Ivy's activities, Mr. Ivy received injuries, during the course of and arising out of his employment, from which he died. Thereafter, pursuant to an application of Mr. Ivy's wife and minor son, respondent Commission made an award in their favor against Miller and their insurer (petitioner), National Automobile Insurance Company.

This is the sole question necessary for us to determine:

Was there substantial evidence to support respondent Commission's finding that petitioner Miller was the employer of the decedent at the time he received the injuries which resulted in his death?

This question must be answered in the negative, and is determined by the following rule which is succinctly and accurately stated in Campbell's Workmen's Compensation, (1935) vol. 1, 410, sec. 454, thus:

“The real test of what constitutes special employment lies in the character of the control and supervision exercised by the alleged special employer over the work and the employee engaged in its performance. It must appear, either by the terms of the contract or during the course of its performance, that the employee of the general employer came under the direction and control of the other party to the contract and suffered injury as the result of such direction and control. The right to or the actual exertion of control must exist. The alleged employer must be in control of the work so that he can at any time stop or continue it and determine the way in which it shall be done, not merely in reference to the result to be reached but as to the method of reaching the result.” (Italics added.)

Applying the foregoing rule to the facts of the instant case it is apparent that the deceased employee was not subject to the direction or control of Miller at the time of the unfortunate accident which resulted in his death.

The record is devoid of any evidence that Miller or its agents exercised or had the right to exercise any degree of control whatsoever over Mr. Ivy after he was employed. The action of Mr. Paul Miller in determining Mr. Ivy's competency to drive a truck before permitting him to assume control of the truck leased to Pathfinder was entirely unrelated in any way to the duties the deceased employee was performing at the time of the accident which resulted in his death.

Under the terms of the agreement between the parties, Pathfinder was to have the sole and exclusive control and use of the truck leased to it by Miller, was to pay and in fact did pay the wages of the driver of the truck, Mr. Ivy, and did direct and control his movements during the time he was in their employ.

Since there was no evidence in conflict with the foregoing, it follows that respondent commission's finding which is here questioned was unsupported by any substantial evidence.

For the foregoing reasons the award of the Industrial Accident Commission against petitioners is annulled.

McCOMB, Justice.

MOORE, P. J., and W. J. WOOD, J., concur.